(Austin, TX; April 19, 2013) – Today a Texas court has ruled that former Williamson County District Attorney Ken Anderson will face criminal contempt and tampering charges for failing to turn over evidence pointing to the innocence of Michael Morton, who was later exonerated by DNA evidence after serving 25 years for his wife’s murder, despite a court order and legal obligation to do so. The Judge ruled there was probable cause to believe Anderson violated three criminal laws by concealing evidence in the case and issued a warrant for his arrest. The decision to bring criminal charges against Anderson comes at the conclusion of a Court of Inquiry that was convened at the request of the Innocence Project, which uncovered evidence that Anderson failed to turn over that could have prevented Morton’s wrongful conviction during its decade long legal battle to prove Morton’s innocence. The court found that Anderson should face criminal charges for failing turn over favorable evidence pointing to Morton’s innocence despite specific requests from the defense and an order by the trial judge to do so. The court made specific findings that Anderson knew of evidence supporting Morton’s innocence but intentionally failed to disclose it to the defense.

Following today’s hearing, Anderson was taken to Williamson County jail for processing. He is expected to be released on bond which was set at $2,500 for each felony count.

“We believe this is a landmark case. I know that good prosecutors, and that’s most of them, agree that it’s important Judge Anderson be held accountable for the willful misconduct that caused Michael Morton to lose 25 years of his life,” said Barry Scheck, Co-Director of the Innocence Project, which is affiliated with Cardozo School of Law. “It’s extremely rare for prosecutors to be punished for deliberately hiding exculpatory evidence, much less face criminal charges. But this outcome will hopefully usher in a new era of oversight to ensure that prosecutors live up to their ethical obligations.”

After Morton was exonerated for the 1987 murder of his wife Christine, the Innocence Project filed a report calling for a Court of Inquiry to investigate whether Anderson engaged in criminal conduct by failing to turn over to the trial court as requested evidence favorable to Morton that was in his file and police files. The Innocence Project conducted depositions of key witnesses and uncovered other evidence showing that Anderson did not turn over the transcript of the victim’s mother telling lead investigator Sgt. Don Wood that Morton’s 3-year-old son told her that Morton was not the attacker, a message to Wood dated two days after the murder reporting that what appears to be the victim’s Visa card was used at store in San Antonio, a report from a neighbor observing someone in a van staking out the Morton’s house before the murder and a report saying that a check made out to the victim may have been cashed with a forged signature nine days after her murder which police appeared to dismiss out of hand before investigating. Morton maintained all along that the murder was committed by a third-party intruder in the course of a burglary.

In March 2013, Mark Alan Norwood, who was identified as the likely true perpetrator through the Innocence Project’s DNA testing, was convicted of the murder of Michael Morton’s wife and sentenced to life in prison. Norwood has also been indicted for another murder in Texas that was committed after Morton was wrongfully imprisoned.

District Judge Louis Sturns of Fort Worth presided over the Court of Inquiry under a special appointment by Chief Justice Wallace Jefferson of the Texas Supreme Court. At the hearing, he said that the Court of Inquiry does not require him to decide whether the statute of limitations prevents prosecution and that Anderson must raise that issue after his arrest. In February, Judge Sturns heard evidence about Anderson’s handling of the case over a weeklong hearing. Today, Judge Sturns announced his decision in the matter, finding that there was probable cause to believe that Anderson was guilty of criminal contempt and concealment of official records for deliberately disobeying the trial judge’s directives to disclose exculpatory evidence and ordered Anderson’s arrest in the courtroom.

“This case provides a very clear roadmap for judges going forward on how to deal with prosecutors who deliberately hide exculpatory evidence,” added Scheck. “The court found that Anderson intentionally misled the trial judge, and that’s what makes this prosecution possible. If judges ordered prosecutors to follow state ethical obligations to disclose all evidence that tends to negate guilt, we would have a very powerful tool for holding accountable those few prosecutors who intentionally break the rules.”

Anderson, who is now a sitting district court judge in Williamson County, is also facing disciplinary action from the State Bar of Texas for his actions in the Morton case. Over the past year, the Innocence Project launched the Prosecutorial Oversight campaign to bring better oversight and accountability over prosecutors. Research conducted over a five year period in six states, including Texas, has found that prosecutors are almost never disciplined for even intentional misconduct. While the available data is scarce, the Innocence Project notes that very few prosecutors have ever been charged criminally for their misconduct.

“Hopefully this case will serve as a wake-up call to prosecutors across the nation that there are real consequences for ignoring the ethical rules that have been established to ensure that everyone gets a fair trial,” said Nina Morrison, a Senior Staff Attorney with the Innocence Project. “As we’ve seen by what happened to Mr. Morton, failing to abide by these rules can have devastating consequences, and prosecutors should be held accountable for their actions just like virtually every other profession.”

Morton was represented by Scheck and Morrison at the Innocence Project, John Raley with Raley & Bowick in Houston, TX, and Gerry Goldstein and Cynthia Orr with Goldstein, Goldstein & Hilley in San Antonio, TX. Rusty Hardin of Rusty Hardin and Associates in Houston, TX, conducted the Court of Inquiry as the Attorney Pro Tem (special prosecutor) under appointment by Judge Sturns.

Comment: Back To 245i – from ILRC
In the House of Representatives, its back to the future all over again. RollCall reports: “Last year, the Obama administration proposed granting waivers from the three- and 10-year bars to some undocumented immigrants. The proposal in the House would completely lift the restrictions for undocumented people currently in the country…On Wednesday, House Judiciary Chairman Robert W. Goodlatte, R-Va., suggested he could support that idea. ‘If you address some kind of reform of that aspect of it, you can avail people of an opportunity that they don’t have now,’ Goodlatte said. ‘Maybe you have to still go home and don’t have the bar, or maybe you adjust here.'” Removing the 3 and 10 year bars is exactly what 245i is and why it’s needed, and if the Republican Chair of the House Judiciary committee says he could support the idea, the earth has officially shaken and moved (in the proper direction!). A bi-partisan group in the House expects to unveil legislative language, possibly this month, which will have the effect of reviving 245i. As to why both political parties might support a 245i-like provision as a compromise position, the RollCall report continues: “Overall, the citizenship proposal could appeal to both parties. To Democrats, it could offer a relatively straightforward way for people here illegally to become citizens. Republicans, on the other hand, would be able to claim that the proposal does not grant anybody a ‘special’ pathway to citizenship. Rather, undocumented immigrants would go through a process similar to, yet separate from, the one legal immigrants undergo to get green cards. At the same time, it would not take visas away from people applying for them through the existing legal process.” For years, inside-the-beltway folks have told us that 245i was political poison, yet here it is, rising phoenix-like from the ashes.

Meanwhile, over in the Senate is where the real action is. TheHill reports that Senate Judiciary committee Chair Patrick Leahy (D-VT) is pressuring the bi-partisan immigration group to deliver language for markup this month. The betting is that if the Senate does act first, then the political pressure on the House will be enormous, and that comprehensive legislation will become law before the summer. We would not take that bet, here’s why. The tricky secret behind the Senate’s reasoning is that before language is produced for the law-making process, the AFL-CIO, and the US Chamber of Commerce have to first agree to terms on hundreds of thousands of temporary visas for thousands of occupations. The Senate’s position assumes that AFL-CIO and USCoC will have the luxury of time to negotiate a compromise, a luxury that does not look politically feasible. House Republican leaders could put immigration reformers in the Senate and the White House on the strategic defensive if they were to introduce a DREAM bill on the House floor, and then proceed to pass it while encouraging their Senate colleagues to amend the bill in a comprehensive direction. Such a move would take the political thunder out of the Democratic Party’s hands and turn immigration into a winning issue for the GOP. Inside-the-beltway folks are still thinking in terms of a CIR signing ceremony in the fall. We believe they are mistaken. The political atmosphere is ripe now, and one must strike the iron while its hot. We suggest that those who really want a CIR statute (as opposed to those who want to talk about CIR whilst hoping in-the-heart-of-their-hearts that nothing really happens so they can keep their cushy jobs) should plan for a CIR signing ceremony before the summer starts.

The fiscal crises of the last couple of months are behind us, the Democrats won one, the Republicans the other. There is no major issue with genuine bi-partisan support immediately before Congress but immigration. Time is ticking…the only question is who will move first – the House GOP or the Senate bi-partisan group? Share your thoughts by writing to editor@ilw.com.

Our broken criminal justice system wasn’t discussed in the first two 2012 debates, and it’s unlikely it will be addressed in the two that remain. In fact, crime hasn’t been a factor in any presidential campaign since 1988, when Vice President George H. W. Bush and political strategist Lee Atwater — along with assists from Al Gore and CNN anchor Bernard Shaw — hit Michael Dukakis over the head with them. Since then, the only way either major party nominee has talked about crime has been to promise he’ll be tougher on it than his opponent.

Even during Supreme Court hearings, the topic only comes up when partisans promise a nominee will crack down on those technicalities crime hawks (mistakenly) believe have turned prison gates into revolving doors. When the Senate was considering Sonia Sotomayor, for example, Sen. Chuck Schumer (D-N.Y.) complemented her judicial history by noting she had “ruled for the government in 83% of immigration cases, in 92% of criminal cases.” Former prosecutor Sen. Amy Klobuchar (D-Minn.) then praised Sotomayor for those occasions in which she had excused police officers who had violated the Fourth Amendment. Vice President Joe Biden told a gathering of law enforcement organizations that Sotomayor “has got your back,” an incredibly inappropriate thing to say (even for Biden). Imagine the uproar if the vice president had said the same thing to the National Association of Criminal Defense Lawyers, or the American Civil Liberties Union.

When crime has been an issue in presidential politics — most notably in 1968, 1980, 1984, and 1988 — it’s been when crime was on the rise. When crime is falling (as it has been for nearly 20 years), the voting public isn’t particularly concerned about whether old laws passed when crime was higher have gone too far. So, neither are the candidates. The result is a ratchet effect on the Bill of Rights.

But those laws have had consequences. For all the talk about “the one percent” over the last eighteen months, the economist David Henderson recently looked at the other one percent. That is, the bottom one percent. Henderson writes:

It turns out that about two-thirds of the people in the bottom 1 percent are in U.S. prisons. And of these people, a few hundred thousand are there for victimless crimes. Letting them out would help them and save us taxpayer money. That’s a win-win …

We have a higher percent of our people in prison than any other country in the world and the percent of our population in prison has, shockingly, more than doubled since 1980 …

We may question the wisdom of using such drugs as marijuana and cocaine, but the people who use them should be free to make their own decisions. They might make bad decisions, but should people go to prison for making bad decisions that hurt no one but, perhaps, themselves?

Former offenders struggle when they leave prison. Sociologists Bruce Western and Devah Prager have conducted experiments (PDF) in which they’ve sent trained testers to apply for job openings. Some were told to check the box on applications indicating that they had a criminal record. The applicants were dressed similarly, and had identical levels of experience. The results? White applicants with a criminal record were half as likely to get callbacks as applicants without a record. Blacks with a criminal record were two-thirds less likely. Former offenders earn 40 percent less than someone with a similar background and experience, but no record. And they’re far less likely to increase their income over time.

An arrest without a conviction can be devastating, too. A check in the “Have you ever been arrested?” box is a handy way for an employer to winnow down a stack of job applications. Why take the risk? In New York City, half a million people are stopped and questioned by police each year without probable cause. In some communities, nine in ten residents have been stopped. Aggressive stop-and-frisk policies have lead to thousands of arrests of people who have done nothing wrong, or have been tricked by police into committing a misdemeanor.

According to Western’s research, as of 2008 about 2.6 million children had a parent in prison or jail, and by age 17, a quarter of black children will have father who has done time. Children of incarcerated parents are more likely to be depressed, get into trouble at school, and drop out of school entirely.

The collateral damage then spirals outward into neighborhoods and communities, where it’s corroding the very institutions law-and-order politicians use to enforce the laws in the first place. In many communities where police use confidential informants or employ an aggressive stop-and-frisk policy, residents no longer call the police to report crimes, and are reluctant to cooperate with them when asked. Western writes:

Part of the power of punishment as a deterrent to crime is the shame and stigma of a criminal record. Where incarceration has become commonplace … the righteousness of the police is no longer assumed and a prison record is not distinctive. The authority of the criminal justice system has been turned upside down, and the institutions charged with maintaining safety become objects of suspicion …

We may care little about the job prospects of ex-cons. We may not even care much about their children or neighborhoods. But if the social costs of imprisonment grow without limit along with the prison population, mass incarceration becomes a self-defeating strategy for crime control.

There are other problems. The onset of DNA testing has revealed that our criminal justice system is more flawed and prone to error than most of the country probably suspected. The gaps in the system that produced the wrongful convictions uncovered by DNA testing are undoubtedly at work in other cases as well.

There’s an important debate to be had about privatizing prisons, and whether it’s wise to have a government-created industry with a bottom line dependent on keeping as many people locked up for as long as possible. There’s the vastly under-reported national scandal of corrupt crime labs and corrupted forensic evidence. The latest incident involves a crime lab technician in Massachusetts who may have faked thousands of drug tests.

Politicians are risk-averse creatures of habit. For decades they’ve been trained to mutter the same soundbites about crime. Polls show America’s opinions on many of these issues are shifting, but few people actually vote on them. And the people most affected when the crime policy pendulum swings too far toward government power aren’t large enough in number or stature to force a debate.

These aren’t commercial-ready, culture warring, fundraising issues like something some candidate said about rape, funding for Big Bird, or whether or not Clint Eastwood is losing his mind. They’re difficult, important, and — especially for the communities they affect most — they’re immensely consequential. But until there’s a penalty at the polls for looking the other way, most candidates will avoid the political risks that come with tackling them.

Deferred Action has further put Romney in a difficult spot – he cannot support it without angering his base nor denounce it and push the Latino community further away. Immigration could also be a tool to help an economy that has been more difficult to get on track than either party anticipated. Perhaps the whole situation was best summed up by the CRS last year: “Immigration issues and potential reform have broad implications for a number of policy areas. Immigration may stimulate the economy by providing both low and high skilled workers. Pursuing an immigration strategy that favors workers entering for employment reasons may also slow U.S. population aging thus averting or delaying a number of the policy challenges that could arise from population aging.”

August 28, 2012

Romney balancing act on undocumented youth getting harder

Undocumented youths 15 to 30 years old certainly can’t vote. But they are a large group — estimated at 800,000 to 1.7 million — that Republican presidential candidate Mitt Romney doesn’t think he can write off completely.

Why? Conventional wisdom has it that Romney, to win, needs to peel off Latino votes from President Obama in key swing states such as Nevada, New Mexico and Colorado. Some Latino voters were once undocumented themselves, or know someone who was or is. They also tend to support the decade-old federal DREAM Act proposal — or something like it that would give youths a chance to earn full legal immigrant status, which isn’t possible within the current immigration system.

Over the weekend, former GOP Florida Gov. Jeb Bush warned his party that it had to get with the nation’s changing demographics and heed the Latino vote — or get left behind.

As Romney’s campaign prepares for the sprint to the finish, the GOP standard-bearer might consider the 2010 California gubernatorial campaign of Meg Whitman, a Romney supporter. In a blitz of Spanish-language TV and radio ads, Whitman simultaneously tried to woo Latino moms and dads by praising Latino schoolchildren as “the future,” while attacking illegal immigrants as a burden and opposing legalization for youths or adults.

That didn’t work.

Romney has repeatedly said he would veto the DREAM Act, which once hadprominent GOP supporters. The act would allow certain youths to earn a green card, or legal permanent residency, by attending college or serving in the military. (Legal permanent residency is a prerequisite step to apply for citizenship.) Romney has also attacked a program that President Obama began this month to allow some undocumented youths who arrived before age 16 and who are not older than 30 to apply for both work permits and a two-year protection from deportation. Obama called it a “stop gap” measure only, and said that he’d sign the DREAM Act if Congress were to pass it.

Romney has pushed a “self-deportation” line as a solution to oust illegal immigrants, but has echoed President Obama in expressing sympathy for young illegal immigrants who were brought to the United States “through no fault of their own.” So far, though, Romney hasn’t offered specifics on what he might do for those young immigrants, if not the Dream Act. And he has dodged questions on whether he would cancel or continue Obama’s new two-year program if he’s elected.

Florida Sen. Sen. Marco Rubio, a Cuban-American and Romney “surrogate,” tried to step into that void this summer when he said he was developing an alternative to the DREAM Act that could be put before Congress.

To curb criticism from the right, Rubio said his idea wouldn’t open a path to citizenship for youths. His program would only provide extended temporary legal status, he said. That stance drew attacks from critics who said Rubio’s proposal would create a “permanent underclass.” Rubio denied that, claiming that once youths had temporary legal status, they could rely on the existing immigration system to ultimately seek green cards. But Rubio has failed to explain how that’s possible given the limits of the current system and its obstacles, as explained in this Center for Public Integrity piece.

On the eve of the GOP convention, Romney’s balancing act on undocumented youths got even more complicated.

Last Thursday, one of Romney’s informal immigration advisers, Kansas Secretary of State Kris Kobach, filed a lawsuit against Obama’s new program on behalf of 10 immigration agents. The suit challenges Obama’s right to allow undocumented “childhood arrivals” to apply for temporary relief from deportation.

Kobach has earned a reputation as an architect of tough state immigration laws, such as Arizona’s “show me your papers” law, and legal challenges to policies that allow certain undocumented students to pay in-state tuition for state college. Last week, Kobach pressed the GOP convention to keep hard-line planks on immigration.

Kobach’s latest suit against Obama’s program is funded by Numbers USA, a Washington, D.C.-based population-control group that has long opposed efforts to pass the DREAM Act.

Pushed to respond to Kobach’s suit, a Romney spokesman issued a carefully worded response, as reported by The Hill. These youths deserve “clarity about their long-term status,” the Romney spokesman said, and Obama’s action only makes it harder to pursue a bipartisan proposal that would offer young illegal immigrants some relief.

Two years ago, in California, a similar balancing act blew up in Meg Whitman‘s face during a debate in heavily Latino Fresno that was sponsored by Univision, the Spanish-language TV giant. Fresno is a farm region where agribusiness groups, a strong GOP constituency, had taken a lead in efforts to try to get Congress to legalize their mostly Latino immigrant workforce — and their families — during the presidency of George W. Bush.

When a young woman rose and told Whitman and Democratic candidate Jerry Brown that she was about to graduate with honors but was undocumented, Whitman’s response left the audience cold. She told the student she didn’t think undocumented students should be allowed into a state college, nor did she support the federal DREAM Act. Labor unions paid for TV ads in Spanish calling Whitman “a two-faced woman.”

Whitman lost in California, for various reasons, including the Latino vote, which is about one-fifth of the state’s electorate. Polls showed that between 64 and 80 percent of California’s Latino voters voted Democrat in 2010.

Last Friday, Univision announced that Obama and Romney had agreed to appear in separate forums and answer questions from the audience. Look for what Romney says when he’s pressed, again, to explain his position on undocumented youths.

For many, the process of a DUI arrest is a very foreign concept. But wouldn’t it be nice to know what is actually going through the mind of a cop during a DUI arrest. According to one top DUI Lawyer in California, Hieu Vu, the thought process derives from his or her training and goes something like this:

A police officer is trained to take notes during the evidence gathering stage. However sometimes an officer will make a mental summary of the evidence collected during 1) vehicle in motion stage, 2) personal contact stage, and 3) pre arrest screening. The amount of information an officer has to record is overwhelming. An officer is specially trained to look for people who drive under the influence. When police officer gather evidence to determine if a person should be arrested for a DUI violation they ask themselves three questions. Should I stop the car? Should the driver exit? Is there probable cause to arrest the suspect for DUI? Today, we will cover the first of three stages.

First an officer will ask himself “should I stop the car?” This is also known as phase 1: vehicle in motion. This involves the initial observation of vehicle and operation. This means they are looking for certain symptoms of impairment to manifest itself in your driving. These things can include failure to maintain proper lane position which manifests itself in weaving, weaving across lanes, straddling a lane, swerving, turning with wide radius, drifting, and almost striking an object or another vehicle. The officer is also trained to look for speed and braking problems. These problems can manifest itself in stopping too far, or jerky stop. The office officer is also trained to look for rapid acceleration or deceleration, whether a person is alternating between speeding up, slowing down and also if they are going too slow. (10 miles under the limit.) Vigilance problems in driving are also an issue. These problems manifest itself in driving in the opposite lane, going down the wrong way street, a slow response to traffic signals, a slow or failure to respond to an officer signals, stopping in the lane for no apparent reason, driving without headlights at night, and failure to signal or signal inconsistent with action. Judgment problems are also an issue. These can manifest itself in a driver following another car too closely, improper or unsafe lane change, illegal or improper turning (meaning turning too fast). An officer is also trained to look for improper response when he signals for you. When an officer signals for you to pull over stopping inappropriately will also count against you. For example, stopping in a prohibited zone, or at a crosswalk. Drinking in the vehicle, urinating at roadside, arguing without cause and other disorderly actions are also visual cues that the officer is trained to look for.

An experienced DUI cop in the state of California is also trained to look for people who appear impaired when driving. This could include eye fixation on the road, tightly gripping the steering wheel, slouching in the seat, gesturing erratically or the infamous face close to the windshield. A lot of these cues can occur when a person is tired or distracted. For example when a person uses a cell phone and gets distracted, this will result in weaving or drifting or striking another vehicle. Also when a person realizes there is a police officer behind them, they may keep their eye on the rearview mirror, which results in drifting and weaving because the eyes are off the road. It is perfectly natural to feel uncomfortable when a police officer is behind you. This is also known as black-and-white fever. Some people are cautious drivers and drive below the speed limits quite often, or some of us make snap decisions and go for U-turn at the last minute; this does not mean a person is impaired. These cues are part of a calculus the police officer would use in deciding whether or not to stop you.

Governor Andrew M. Cuomo today announced that New York State will suspend participation in the federal Secure Communities Program to review the mounting evidence that the program is not meeting its stated goal and has serious consequences for witnesses, victims of crime and law enforcement.

The goal as stated by the federal government was to deport serious felons, and, based on evidence to date, it appears the program in New York is failing in this regard and is actually undermining law enforcement. Because of similar concerns, the Inspector General of the U.S. Department of Homeland Security (DHS) is investigating the program.

“There are concerns about the implementation of the program as well as its impact on families, immigrant communities and law enforcement in New York,” Governor Cuomo said. “As a result, New York is suspending its participation in the program.”

In a letter to DHS, Governor Cuomo’s administration stated that information produced thus far has called into question – at both the federal and state levels – the implementation and intended effect of the Secure Communities program.

Governor Cuomo’s office has also received complaints stating that the goals of the program were not being met. The questions raised are further aggravated by inconsistent statements by DHS and a failure to disclose basic information about the program.

Congressman Jose E. Serrano said, “Governor Cuomo has taken a brave and necessary step in suspending New York State’s participation in the flawed ‘Secure Communities’ program, and he deserves great praise. He is firmly in line with our state’s pro-immigrant tradition and on behalf of the immigrants and their friends in our community, I would like to thank him. Having New York State pull back from this unfair and aggressive program should be a wake-up call to the Department of Homeland Security. It is time to end this program and I am glad my home state will no longer take part.”

Congresswoman Nydia M. Velázquez said, “I thank Governor Cuomo for showing the leadership and foresight to suspend this misguided program, which does not reflect New York’s long history as a welcoming home for newly arrived immigrants. The Secure Communities initiative does not make our nation safer, but inhibits cooperation with law enforcement and violates immigrants’ due process rights.”

Derek P. Champagne, Franklin County District Attorney and President of the District Attorneys Association of the State of New York (DAASNY), said, “By suspending the state’s participation in this program until a comprehensive review is complete, the Governor is sending a strong message that the law enforcement tools we utilize must be clearly communicated, evenly applied and effective. We will continue to use the effective tools that have been in place for many years to ensure that we are identifying and preventing any risk to public safety.”

Janet DiFiore, Westchester County District Attorney, said, “I support Governor Cuomo’s decision to take New York State out of the Secure Communities Program in light of reports of the unintended consequences by its implementation. I remain confident that law enforcement throughout the state presently has sufficient tools at its disposal to continue to safeguard and protect all New Yorkers.”

State Senator Adriano Espaillat, Chair of the Latino Caucus of the Senate, said, “Governor Cuomo’s decision to end the so-called Secure Communities program in New York will restore rights and justice to countless immigrants across the state. We must enact policies and reforms that bolster our diverse population, not penalize it by instilling a sense of fear of wrongful deportation in our neighborhoods.”

State Senator Gustavo Rivera, Vice Chair of the Latino Caucus of the Senate, said, “I applaud Governor Cuomo for having the courage to put an end to this program’s existence in New York. The Secure Communities program has frightened victims and witnesses of crime from coming forward. We need to make our neighborhoods safe places for our families and not take part in a problematic and contradictory program that hinders our safety.”

Assemblyman Felix Ortiz, Chair of the Puerto Rican/Hispanic Task Force, said, “The Secure Communities program has done the opposite of what it was supposed to do, and Governor Cuomo is right in removing our state from the program. While we continue to work to find ways to make it safer for victims and witnesses of crime to come forward and be a part of the process to save our communities, we must not let our state be part of an experiment that puts innocent people at risk.”

Thomas H. Mungeer, President of the New York State Police Benevolent Association, said, “We support Governor Cuomo’s action today in suspending Secure Communities until the numerous questions, including a federal Inspector General’s investigation, can be resolved. Police rely upon a partnership with the communities that they serve to ensure the public safety of us all. The questions that have surrounded the implementation of Secure Communities drives a wedge between law enforcement and the people they are sworn to protect. We are confident that the procedures we currently use and the strong relationships we currently have with federal, state and local authorities will ensure that we can keep our communities safe while also maintaining our relationship of trust.”

John Poklemba, Counsel to the New York State Association of Chiefs of Police, said, “Governor Cuomo has made the right decision to take New York State out of the controversial Secure Communities program. This program unfortunately has had a negative impact on our crime-fighting efforts. Law enforcement must have tools and resources that are both effective and fair.”

Jack Mahar, Sheriff of Rensselaer County and President of the New York State Sheriffs Association, said, “Every day, law enforcement officers put their lives on the line to rid our neighborhoods of crime, and we do it with the cooperation of the law-abiding public. This program was intended to make communities safer and stronger, but many people question whether this program has really accomplished its objectives. Governor Cuomo is right to remove our state from this program until all concerns are addressed.”

Clinton County Sheriff David Favro said, “Governor Cuomo’s decision to freeze the Secure Communities program until the questions that have been raised about its implementation can be settled, is a wise one. While we are sworn to keep our communities safe, that cannot come at the price of their trust. Our strong current partnerships with federal law enforcement and long-standing operations in this state will ensure that we continue to communicate effectively to identify undocumented immigrants in our county jails and take appropriate actions.”

Chautauqua County Sheriff Joseph Gerace said, “We support Governor Cuomo’s action today in suspending Secure Communities until the numerous questions, including a federal Inspector General’s investigation, can be resolved. Sheriff departments rely upon a partnership with the communities that they serve to ensure public safety for us all. The questions that have surrounded the implementation of Secure Communities jeopardizes that relationship. We are confident that the procedures we currently use and the strong relationship we currently have with federal, state and local authorities will ensure that we can keep our communities safe while also maintaining our relationship of trust.”

Steven Krokoff, Chief of the Albany Police Department said, “In light of the confusion surrounding this program and the pending Inspector General’s review, the Governor’s decision to freeze this program until the federal review is complete is appropriate. The procedures we currently use will ensure the safety of neighborhoods across the state while at the same time encouraging individuals in all communities to come forward to report crimes.”

Donna Lieberman, Executive Director of the New York Civil Liberties Union, said, “We applaud Governor Cuomo for taking the bold step of removing New York State from the Secure Communities initiative, which, despite its name, has become a sore subject for those who work day and night to make our neighborhoods safer. We need to ensure that vulnerable populations are protected, and the decision to remove our state from this program is a positive move for all New Yorkers.”

Chung-Wha Hong, Executive Director of the New York Immigration Coalition, said, “For centuries, families have gone to great lengths to come to this great nation, and we owe it to ourselves and our neighbors to make sure the law is on their side. Unfortunately, the Secure Communities program has failed to provide protections to many individuals. Governor Cuomo’s decision to remove New York from the program is a right one, and we look forward to working with him to make our state safe for all residents.”

Prosecutorial misconduct taints the entire judicial system. Even though our system says all defendants are “PRESUMED INNOCENT UNTIL PROVEN GUILTY” defendant’s are already looked at as if they have done something wrong just because they have been arrested. Judges, defense attorneys, society and prosecutors themselves should hold prosecutors to a high standard when prosecuting people. In a recent jury trial of mine, the prosecutor failed to comply with discovery and turn over information on a witness which is well settled statutory and United States Supreme Court law. This should never be acceptable.

Bay Area prosecutors committed misconduct last year in 18 cases serious enough to attract notice from state and federal courts, according to a report released this month.

In four of those cases — including two in Santa Clara County — the courts either set aside the sentence or conviction, barred evidence or declared a mistrial, according to the report by the Northern California Innocence Project. Such misconduct, including concealing evidence favorable to a defendant, can result in costly retrials or lengthy legal battles even if the conviction ultimately is upheld.

“Our research shows prosecutorial misconduct continues throughout the state in a broad range of prosecutions ranging from burglary to rape to murder,” said Maurice Possley, co-author of the study.

But critics, including some prosecutors named in the study, claim the Innocence Project fails to carefully research the cases in its haste to skewer deputy district attorneys.

“Like Holocaust deniers and people who believe we never went to the moon, they have an agenda, and no fact is ever going to get in their way,” said San Mateo County prosecutor Alfred Giannini, who the study describes as a “multiple offender.”

Giannini was cited last year for misconduct in a murder trial that led to the conviction being set aside, according to the study. It was the third case in which courts have found his conduct has led to a reversal or mistrial since 1999. He disputes either the courts’ findings in all three cases or the
Innocence Project’s summary of those opinions. Possley says the aim of the Innocence Project, based at Santa Clara University’s law school, is not to lambaste prosecutors but to spur reform. If anything, he said, the study undercounts the actual problem because it does not include trial-level

findings of misconduct that are not reflected in appellate court rulings and would have to be researched by searching every case file in every courthouse in the state.

Misconduct ranges from small technical errors to presenting false evidence, engaging in improper examination, making false and prejudicial arguments, violating defendants’ Fifth Amendment right to silence and discriminating against minorities in jury selection.

Statewide, the study shows courts found prosecutors committed misconduct last year in 102 cases, 26 of which required courts to overturn the conviction or otherwise modify the outcome. In the other 76 cases, the courts upheld the convictions, finding that the misconduct didn’t alter the fundamental fairness of the trial. The Innocence Project disputes the “harmless error” findings in some of the cases, noting some mistakes were constitutional violations, not just technical errors.

The number of misconduct findings increased last year — up from 61 statewide in 2009, 11 of which involved Bay Area cases. In three of those local 2009 cases, the misconduct was deemed “harmful” and the sentences or convictions modified. But it’s unclear whether the increase last year is due to
more brazen misconduct or better monitoring by the courts.

This man was held here in San Diego at a CCA facility (Corrections Corporation of America), a private corporation that has multi-million dollar contract with the Federal Government yearly to house detained immigrants. This is a short op-ed that certainly points out the blatant disregard for human life however it doesn’t show the heinous treatment of this man. As a federal judge aptly said this goes “beyond cruel and unusual punishment.”

Sadly, there are still not enough changes happening quickly enough and detainees are still dying.

Editorial

A Southern California case in which federal officials agreed to pay $1.95 million to settle a wrongful death suit points up the need for the Obama administration to make authorities responsible for their charges’ basic health needs, no matter their immigration status.

April 8, 2011

Francisco Castaneda spent nearly a year locked up in Southern California immigration detention centers while fighting his deportation case. During that time, the Salvadoran national pleaded with the medical staff to treat painful lesions on his penis. He filed grievances about the quality of care and even sought outside help. Department of Homeland Security health officials responded by giving him Ibuprofen and denying his request for a biopsy because it was considered “an elective procedure.” He was released in 2007, and within days was diagnosed with penile cancer.

If Castaneda had been an inmate assigned to a “supermax” prison instead of an immigrant held in a detention center, he would have been likely to receive treatment quickly. Instead, he died a year after he was released, at age 36. On Thursday, federal officials agreed to pay $1.95 million to settle a wrongful death suit brought by Castaneda’s family. U.S. Immigration and Customs Enforcement admitted in court that its negligence led to his death.

Late last year, in response to this and other cases, the Obama administration began overhauling the system to ensure that all detainees in federal custody — including asylum seekers, refugees and legal permanent residents, as well as those being deported for illegal entry — receive basic medical care. It may seem obvious that detainees are entitled to such care, as are convicted criminals in jails and prisons across the country. But consider some of the stories of the 118 immigrants who have died in federal custody since 2003. A transgender Mexican immigrant with AIDS, for instance, was denied medications for weeks. An elderly Haitian preacher seeking asylum in the United States had his blood pressure medication confiscated. A tailor from Guinea who became incoherent after a fall in his cell was placed in solitary confinement instead of being given medical attention.

The Obama administration eliminated the bureaucracythat had required prior approval from a Washington office for any outside care. Now, onsite doctors and nurses have the power to order biopsies, ultrasounds or dental examswithout waiting weeks or months.

It’s a positive step, but not enough given past failures. The Department of Homeland Security should make all existing detention system rules legally enforceable regulations. In the case of medical treatment, such a change would hold immigration officials accountable for providing basic care, including immediate medical and mental screenings. And it would allow detainees to protest substandard healthcare and appeal the denial of care.

President Obama did not create the detention system. He does, however, have the power and the moral obligation to ensure that all detainees are treated fairly and humanely, without regard to their immigration status.

Silicon Valley De-Bug • Op-Ed • Angie Junck, Raj Jayadev • March 30, 2011 On the heels of the one-year anniversary of a historic Supreme Court decision, attorney Angie Junck and organizer Raj Jayadev share lessons learned from a case of a San Jose man who beat a deportation order.

This week marks the one-year anniversary of Padilla v. Kentucky – arguably the most important U.S. Supreme Court decision to date in terms of the nexus between local criminal courts and federal immigration laws. This is also the first week of renewed freedom for Jeysson Minota, a 28-year-old legal permanent resident from Colombia who had been in and out of federal detention centers for the past four years due to charges stemming from graffiti. His detention and his ultimate freedom tell the story of the need and possibility of the Padilla standard.

In the Padilla case, the Supreme Court held that the Constitution requires that criminal defense counsel provide affirmative and competent advice on the immigration consequences of a criminal disposition to noncitizen defendants. The advice is critical to defendants like Minota.

The criminal act that got Minota in the scopes of Homeland Security was vandalism. As a younger man, Minota was a graffiti artist and had plead to a felony charge of vandalism. Immigration and enforcement claimed that vandalism is a ”crime of moral turpitude,” thus being a deportable offense, even though Minota was a greencard holder.

Had his previous lawyers informed Minota that a guilty plea could lead to deportation, he may not have been in detention for four years. Because he did not plead guilty to his more recent misdemeanor criminal charge he was able to eventually win another green card and a new start in the United States, in immigration court. Had he plead guilty to the seemingly innocuous charge, one that would have carried no extra jail time, it would have been equivalent to an immigration death sentence triggering permanent deportation and separation from his U.S. citizen wife, two children, mother, and siblings.

Instead, Minota took his case to trial, and with the advocacy of his public defender, was found innocent. The win gave his immigration attorney a shot to keep him in this country.

But as with any legal device, the decision from Padilla v. Kentucky is a measure of protection that only has value if exercised. There are two glaring and systemic roadblocks that make cases like Minota’s, even with the Padilla decision, more the exception than the rule. Both though can be overcome through legal education and expanding the lens of community advocacy.

Strip away the political value judgments around constitutional protections for immigrants, and you are still left with overly-impacted criminal courts. The reality is guilty pleas, early and often, are perhaps all that prevents the county court systems from bursting at the seams. In fact, less than five percent of all felony cases across the country ever reach the trial stage. Consequently, one of the most fundamental rights afforded to the accused – the right to a public hearing – is circumvented on a daily basis.

For those without immigration consequences plea deals may be the best option in order to receive a lighter sentence, but for those like Minota it is a decision often born out of the pressure and isolation of the experience, and one they may come to regret. In Santa Clara County in 2008, where Minota faced criminal charges, the District Attorney’s office tried only 260 cases (including both misdemeanor and felony cases) out of roughly 30,000 cases. That is less than one percent, meaning the immigration fates of immigrants who are part of that pool of defendants were sealed well before they faced an immigration judge.

Immigrants are often represented by the Public Defender’s office. Public Defender offices across the country appoint attorneys to the indigent — those without the resources to hire a private attorney. In California, 90 percent of all the accused are represented by some form of publicly-appointed counsel. Often times publicly-appointed attorneys have an overwhelming number of cases to juggle compared to private attorneys who choose their own dockets and workload. Consequently, there is an incentive for public attorneys to encourage their clients to plead, rather than take the time for investigation, motions and defense construction for a trial.

In Santa Clara County the Public Defender’s office does not staff all misdemeanor arraignment courts, a key stage where pleas are being entered and where immigrants are digging their own deportation graves. In these settings immigrant defendants, unless they’ve retained private counsel, would not have an attorney to consult with to understand the potentially life altering consequences of the plea they enter.

The second systemic hurdle which makes the enforcement of Padilla difficult is a simple one: Who will hold defense attorneys responsible to meet that criteria? Minota’s case was unique in that he had the help of a community organization that actively challenged his defense attorney to take into account his immigration status, and an immigration attorney who could advise the criminal attorneys. The organization supporting Minota, Silicon Valley De-Bug, his family and his immigration attorney Angie Junck of the Immigrant Legal Resource Center met weekly to assess the status of the case and develop strategies. Minota says, “I knew I could continue to fight because I knew I had people on the outside that were fighting for me.”

The notion of community involvement — communicating with lawyers, reviewing paperwork, attending court hearings — in criminal or immigration cases is currently not common practice, particularly in immigrant communities. The Padilla standard may be a lever to make defense counsel better protect the rights of immigrants, but there have to be people to pull it.

The lessons learned from Minota’s case then are two-fold: The criminal defense bar, particularly public attorneys on immigration matters, need to be educated on immigration consequences to criminal charges and immigrant advocate groups need to see criminal courts as a central space for advocacy to keep families together in this country. That is why the Immigration Legal Resource Center advocates for institutionalizing immigration protocols and resources in defense offices so that defending noncitizens with immigration consequences in mind becomes an integral and ongoing part of criminal defense practice. It is also why Silicon Valley De-Bug is encouraging immigrant advocacy groups across the country to meet with the public defender offices within their counties, to both hold them accountable and to encourage and support their vigilance.

Minota’s freedom is a testament to what is possible when both approaches are employed.

Raj Jayadev is the Director of Silicon Valley De-Bug and a Soros Justice Fellow. Angie Junck is a staff attorney for the Immigrant Legal Resource Center.

The Immigrant Legal Resource Center identifies and mentors immigration point persons within defense offices, creates written reference resources, and provides ongoing training and technical assistance to help defenders effectively represent immigrants against the adverse consequences of criminal dispositions.

Silicon Valley De-Bug, through the Albert Cobarrubias Justice Project, works to empower families who have had direct contact criminal and immigration laws. They are currently equipping community hubs — churches, ethnic community centers, neighborhood associations — with the tools and information needed to provide sustained support for a loved one who may be detained.

For more information, or to reprint this article contact: svdebug@newamericamedia.org

The Deportation of our US Military Veterans continues and there is not enough of an uprising and outrage regarding this travesty of justice. As Americans we say we support our troops but what about when they come home? We just throw them away?

Manuel and Valente Valenzuela signed an oath to protect the United State of America when they enlisted in the military. Shortly thereafter, they found themselves fighting for their lives and their country in Viet Nam. Both brothers saw the heat of combat, and Valente, the older brother, had some special duties, something he keeps close to his conscience to this day.

Many Valenzuela friends paid the ultimate price, leaving each brother grateful it was not his time to be called to a higher place while defending democracy in a rice paddy in Viet Nam. Unfortunately, the country that sent our youth to fight and likely die to defend the homeland lacks gratitude for those who answered the call of duty. The United States is in the process of deporting both Valenzuela brothers from it’s borders.

This is a disgraceful story which places yet another black mark on the record of civil rights and respect for dignity of a mighty country. Manuel and Valente Valenzuela were brought to the US by their citizen mother when they were young. They grew up as Americans and consider themselves citizens. They answered the call of duty. They have paid taxes and lived like any other American. Yet they are forced to fight the immigration system after fighting for their country in Southeast Asia.

On March 29th, 2001, Manuel and Valente Valenzuela will tell their story as featured guests at the University of Colorado at Colorado Springs, (UCCS) Colorado. The presentation will start at 3:00 p.m. at the University Center Building, Room 303.

The brothers will talk about how their deportation proceedings have affected their lives, on top of the post traumatic stress they suffered in Viet Nam. Manuel and Valente will also speak about other veterans who lost their battle to stay in the United States after fighting to defend this country. Few people are aware of the veterans who have been deported despite being considered citizens and required to serve in our armed forces.

The Valenzuela brothers are a prime example of a broken immigration system which panders to the cliché’s of “waiting in the back of the line”. Somewhere the system has failed to take into account veterans who served in combat duty, who offered their lives to protect democracy, and who are now forgotten by a country that pretends to laud freedom and human rights. If deported, the Valenzuela brothers can come back to the United States one final time. That will be to lay their bodies to rest in Arlington National Cemetery after they die in a foreign land. Until then, they will be personas non grata. The talk is open to the public and all are encouraged to attend.